Daniel v. McNeel

74 So. 2d 753, 221 Miss. 666, 1954 Miss. LEXIS 575

• Court: Mississippi Supreme Court
• Decided: October 4, 1954
• Docket: No. 39268
• Status: Published

Opinion

Roberds, P. J.

Daniel sued McNeel, sheriff, and the surety on his official bond, for damages resulting from alleged (1) unlawful trespass, (2) false arrest and imprisonment, and (3) malicious prosecution. The jury returned a verdict for defendants. On appeal to this Court wo held that, notwithstanding the verdict of the jury, the testimony showed conclusively the sheriff was a trespasser in the home of Daniel and that the arrest and imprisonment of Daniel was unlawful, and remanded the case for assessment of damages. The report of the case on appeal sets out the facts. State for Use of Daniel v. McNeel, Sheriff, et al., 217 Miss. 573, 64 So. 2d 636.

After remand the case was retried and the jiiry returned a verdict that plaintiff had suffered no damage. From that verdict and the judgment pursuant thereto this appeal was taken.

Liability was adjudged on the former trial. , In addition, substantially the same testimony on liability was introduced on the second as was introduced on the first trial; therefore, it is judicially settled that McNeel committed an illegal trespass by entering the home of Daniel and unlawfully arresting and placing him in jail. Under these circumstances McNeel is liable for at least nominal damages. Keirn v. Warfield, 60 Miss. 799; Clark v. Hart, 3 So. 33; McGhee v. Laurel Light & Ry. Co., 113 Miss. 603, 74 So. 434. Therefore, judgment will be entered here against appellees for the nominal sum of $10.00, and costs will be assessed against them.

We have examined the contentions made by appellant for reversal and remand of the case for another trial on the question of damages, but we do not think they are well taken.

Eeversed and judgment here accordingly.

Eeversed and judgment here.

Hall, Lee, Holmes and Ethridge, JJ., concur.